Polish Horse Idiom Pulled Into Regulatory Snaggle

(CN) – An Austrian daily newspaper that offers a video section on its website cannot be regulated as an audiovisual service, an adviser to the EU’s high court said Wednesday. The opinion by Advocate General Maciej Szpunar begins with what is apparently Poland’s equivalent for the Supreme Court’s obscenity standard, “I know it when I see it,” as famously voiced by Justice Potter Stewart in 1964. “‘Kon jaki jest, kazdy widzi’ (we all know what a horse is),” Spzpunar wrote. “Thus read one of the definitions contained in the first Polish encyclopaedia, published in the eighteenth century. “The problem of defining an audiovisual media service in the internet context, which is the subject of the present case, might seem similar – intuitively everyone is capable of identifying such a service. However, when it comes to describing it in legal language, it is difficult to find terms which are at the same time sufficiently clear-cut and comprehensive.” This issue has come to a head before the EU Court of Justice over attempts by Austria to regulate the website for Austrian newspaper Tiroler Tageszeitung as an on-demand audiovisual media service. Along with traditional news content, the website also contains a video section with approximately 300 videos thematically linked to news articles. Some of these videos are produced by the newspaper, but others are supplied by users. Szpunar found Wednesday that the regulator, Kommunikationsbehörde Austria, followed an overly broad, too literal definition of audiovisual media services by applying the label to the Tiroler Tagezeitung’s online offerings. The preamble to the EU directive governing audiovisual media services specifically states that it did not intend to include internet information portals within its scope. Rather, the directive is aimed at websites that offer feature-length films, television serials, sports events, and the like, Szupnar found. “An internet portal, such as the Tiroler Tageszeitung Online website, does not meet the requirements for being regarded as an audiovisual media service within the meaning of the directive,” the judge said. “The emergence of multimedia internet portals containing audio and audiovisual material in addition to written content and photographs is not the result of the technological development of television, but an entirely new phenomenon linked primarily with the increase in the bandwidth of telecommunication networks.” Videos on the Tiroler Tageszeitung’s website are not meant to be consumed separately from the site’s news content, the opinion notes. “The essence of a multimedia service is the combination of different forms of communication – word, image and sound – and the specific architecture of the portal is merely a secondary technical aspect,” Szpunar said. In other words, it is no stretch to describe the website as an electronic version of the newspaper, even if it contains videos, which a traditional paper lacks, the court adviser found. Szpunar said he was not concerned that this ruling would allow persons providing media services to pass themselves off as information portals and circumvent the law, as an individual assessment is required in individual cases regardless. In any case, difficulties arising from the need to assess the character of websites containing audiovisual material, “cannot justify an interpretation of the directive as in practice covering all current audiovisual content on the Internet, thereby going beyond the scope of regulation sought by the legislature,” the opinion concludes. Szpunar’s opinion is not binding on the Court of Justice, which will now begin its own deliberations in the case.